The pre-Roe statutes were based on § 230.3 of the Model Penal Code.1 The statutes allowed an abortion to be performed before the one hundred fiftieth day of pregnancy when (1) there was “substantial risk that continuance of the pregnancy [would] greatly impair the physical or mental health of the mother,” (2) “the child would be born with serious physical or mental defect,” or (3) the pregnancy resulted from felonious intercourse.2 After the one hundred fiftieth day, abortion was permitted only if “the life of the pregnant woman [was] in imminent danger.”3
Pursuant to Roe, most of these statutes were declared unconstitutional in an unreported decision of a three-judge federal court,4 and were later repealed.5 The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy.6
1 Or. Rev. Stat. § 435.405 et seq. (1969).
2 Id. §§ 435.415, 435.425(1). As the experience in California demonstrated, mental health exceptions were widely abused. See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health).
3 Id. § 445(1). The law imposed other conditions. Abortions could be performed only by licensed physicians in licensed hospitals. Id. §§ 435.415(3), 435.405(1), 435.405(2). Except in emergency cases, two other physicians had to certify in writing the circumstances justifying an abortion. Id. §§ 435.425, 435.445(1). If the person seeking an abortion was a minor, the written consent of her parent was required; and, if she was married and living with her husband, his written consent. Id. § 435.435.
4 Benson v. Johnson, No. 70-226 (D. Or. Feb. 1973).
5 1983 Or. Laws 868, ch. 470, § 1.
6 Although the Oregon Court of Appeals held an administrative rule restricting public funding of abortions violated the state privileges and immunities provision, see Planned Parenthood Ass’n, Inc. v. Dep’t of Human Resources, 663 P.2d 1247, 1257-61 (Or. Ct. App. 1983), the Oregon Supreme Court affirmed the decision on other (statutory) grounds, holding that the court of appeals’ “ruling and the constitutional challenge are premature.” Planned Parenthood Ass’n, Inc. v. Dep’t of Human Resources, 687 P.2d 785, 787 (Or. 1984).
Life Legal Defense Fund. All rights reserved.
May be reprinted without permission but with attribution to Life Legal Defense Fund.